School drug testing faces test in court

WASHINGTON
— The US Supreme Court today will weigh how far public schools can go in imposing random drug tests on students who participate in extracurricular activities  from cheerleading to the Future Farmers of America.

The case involves Lindsay Earls, who wanted to sing in the school choir, march in the school band, and compete on her school's academic team. Instead, the high school sophomore found herself in the girl's washroom with three faculty members listening intently outside a stall as she attempted to fill a plastic vial.

It was part of a policy adopted by the school board in Tecumseh, Okla., requiring that all students in grades 7 to 12 seeking to participate in school activities submit to random drug tests.

Today, the high court will consider whether what happened to Earls was a violation of her constitutional right to privacy, or an acceptable effort by school officials to combat the scourge of illegal drug use among America's youths.

"The best way to keep kids away from drugs is to get them involved in the choir and the band and these other activities. You don't want to set up obstacles to these activities, and that is what the school is doing," says Graham Boyd, a lawyer with the American Civil Liberties Union Foundation, who is arguing the case on behalf of Ms. Earls.

Lawyers for the school board counter that school officials have determined that there is a drug problem in the Tecumseh schools and that random testing is an appropriate tool to address it.

"Tecumseh has the authority and responsibility, as the tutor and guardian of its students, to ensure that the health and safety of its children are safeguarded at all times while they are in the custody of school officials," says the brief of Linda Maria Meoli, an Oklahoma City lawyer with the Center for Education Law, which is representing the school district.

The issue is significant because a decision upholding the Tecumseh policy could open the door for blanket drug tests for virtually all 24 million public secondary-school students across the country. On the other hand, a decision striking down the Tecumseh policy could help strengthen the privacy rights of public-school students by clarifying the limits of antidrug policies adopted by school officials.

At the center of the case is whether random drug tests must be aimed at a specific group of students deemed to be at a higher risk of drug use, or whether the potential deterrent effect of such random drug tests is enough to justify applying the program across a broader population of students.

Courts are divided on the issue. State courts in Colorado, Indiana, and Pennsylvania have struck down random drug tests for those participating in extracurricular activities. Federal appeals-court panels in both the Seventh and Eighth Circuits have upheld similar programs.

'Hostile to' a blanket search

Mr. Boyd says America's Founding Fathers cherished privacy from intrusive government so much that they guaranteed it to all Americans through the Constitution's Fourth Amendment. "Throughout American history, the notion of a blanket search of any group is one that we have been very hostile to," he says.

But others say the stakes are too high when the health and safety of children are at risk. "We have an epidemic in this country with drug abuse, and it is a growing epidemic with young people," says Calvina Fay, executive director of Save Our Society From Drugs in St. Petersburg, Fla.

"If we have a tool [random tests] to intervene and fix the problem, why would we not use that tool," she asks. "What are we going to do as a civilized society  sit back and wait until our children are so addicted that we can't help them?"

Ms. Fay says random testing has proved successful in the workplace and helped dramatically reduce drug use in the US military to about 4 percent. The same techniques would work in schools, she says.

In earlier cases, the Supreme Court has upheld suspicionless drug tests for railroad employees involved in accidents and US Customs Service agents working in drug law enforcement.

But the high court has also struck down a Georgia state law that required candidates for certain public offices to submit to drug tests.

By far, the closest case to the Tecumseh policy is a 1995 decision in which the Supreme Court upheld a policy adopted by a school board in Vernonia, Ore., requiring random drug tests of all student athletes.

The majority opinion, written by Justice Antonin Scalia, found that the policy was not an "unreasonable search" under the Fourth Amendment, because a serious drug problem existed at the school and athletes had been identified as being leaders in the student drug culture.

The justices reasoned that student athletes had a lower expectation of privacy than other students because they underwent preseason physical examinations and showered and changed clothes together in the same locker room.

In addition, the justices expressed concern that illegal drug use by athletes might contribute to certain sports-related injuries.

The key to that case, according to Justice Scalia, was whether the drug-testing policy was one that a "reasonable guardian and tutor" of children in a school setting might undertake.

The justices made a special effort to warn lawyers and school board members against reading the opinion too broadly. "We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts," Scalia wrote.

Tecumseh's rules

The Tecumseh policy was adopted in September 1998. It requires as a condition of participating in extracurricular activities that students agree to random drug tests throughout the year.

Earls and another student challenged the policy in court with the help of the American Civil Liberties Union. A federal judge upheld the policy, but a divided panel of the 10th US Circuit Court of Appeals in Denver struck it down by a 2-to-1 vote.

The appeals court said that the possible deterrent effect of tests wasn't enough to justify their use as a precondition to participation in extracurricular activities.